Citation Nr: 9808273
Decision Date: 03/19/98 Archive Date: 04/02/98
DOCKET NO. 96-51 198 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUES
1. Entitlement to service connection for a liver disorder,
claimed as a manifestation of an undiagnosed illness.
2. Entitlement to service connection for a skin disorder,
claimed as a manifestation of an undiagnosed illness.
3. Entitlement to service connection for a chronic fatigue
disorder, claimed as a manifestation of an undiagnosed
illness.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Joshua S. Blume
INTRODUCTION
The veteran had active military service from May 1986 to
March 1988 and from September 1990 to April 1991.
The issues now on appeal to the Board of Veterans’ Appeals
(Board) arise from an October 1995 rating decision of the
Nashville, Tennessee regional office of the Department of
Veterans Affairs (VA) which denied entitlement to service
connection for a liver disorder, a skin disorder, and a
chronic fatigue disorder, all of which were claimed as
manifestations of, or attributable to, an undiagnosed illness
or illnesses. 38 C.F.R. § 3.317 (1997). The veteran
disagreed with this determination in February 1996 and in
June 1996, the RO issued a statement of the case. In July
1996, the veteran filed a substantive appeal.
In the substantive appeal, the veteran marked the box
indicating that he desired to appear at a hearing before a
member of the Board. However, he did not elect between a
central office (CO) hearing and a travel board (TB) hearing,
and, in an accompanying letter, clarified that in fact he
wanted a hearing before a local hearing officer at the RO.
This hearing was held in January 1997.
In June 1997, the veteran’s claims file was returned to the
Winston-Salem, North Carolina regional office (RO) from the
Nashville regional office.
The Board also notes that the veteran executed a power of
attorney in favor of The American Legion, “c/o [The North
Carolina Division of Veterans Affairs]” in April 1995. The
RO sent the veteran a letter in October 1997 noting that the
veteran had apparently executed the power of attorney in
favor of two representatives, and that such was not permitted
under the regulations. It directed the veteran to execute a
new power of attorney in favor of one of the two
organizations, and advised that if he did not do so and
return the form within 60 days, it would assume that he did
not desire to have a representative. No response from the
veteran to this letter is associated with the claims file.
Hence, the veteran is currently unrepresented.
REMAND
The veteran essentially contends that he currently suffers
from liver and skin ailments, as well as from chronic
fatigue, all of which are not attributable to known clinical
diagnoses, and he further alleges that he contracted these
conditions while serving in the Southwest Asian theater of
operations during the Gulf War period.
Further, in his substantive appeal, the veteran appears to
have raised additional claims of entitlement to service
connection for other manifestations of an undiagnosed illness
or undiagnosed illnesses, including gastrointestinal
symptoms, joint pain, headaches and muscle pain. These
matters have not been adjudicated by the RO. However, to
avoid piecemeal adjudication of a veteran’s claim, the RO
should address these issues. Also, the Board notes that the
veteran’s then representative may have raised a claim of
entitlement to service connection for “chronic fatigue
syndrome” as a diagnosed disability during the RO hearing.
This matter too should be adjudicated by the RO. So that
veterans diagnosed with chronic fatigue syndrome receive
consistent evaluations, certain specific criteria have been
established for a diagnosis of this disability under 38
C.F.R. § 4.88a, as revised effective July 15, 1995. [A new
Diagnostic Code 6354 was also established so that once
service-connected, disability ratings might be uniformly
effectuated]. These criteria must be considered by the
examiner so that he/she may adequately determine whether the
veteran has chronic fatigue syndrome or an undiagnosed
illness manifested by fatigue.
Specifically, the pertinent VA regulation concerning
diagnosis of chronic fatigue syndrome reads as follows:
(a) For VA purposes, the diagnosis of
chronic fatigue syndrome requires:
(1) new onset of debilitating
fatigue severe enough to reduce daily
activity to less than 50 percent of the
usual level for at least six months; and
(2) the exclusion, by history,
physical examination, and laboratory
tests, of all other clinical conditions
that may produce similar symptoms; and
(3) six or more of the following:
(i) acute onset of the condition,
(ii) low grade fever,
(iii) nonexudative pharyngitis,
(iv) palpable or tender cervical or
axillary lymph nodes,
(v) generalized muscle aches or
weakness,
(vi) fatigue lasting 24 hours or
longer after exercise,
(vii) headaches (of a type,
severity, or pattern that is
different from headaches in the pre-
morbid state),
(viii) migratory joint pains,
(ix) neuropsychologic symptoms,
(x) sleep disturbance.
38 C.F.R. § 4.88a (1997).
Pursuant to 38 U.S.C.A. § 1117 (West 1991 & Supp. 1997), the
Secretary of VA may pay compensation to any Persian Gulf
veteran suffering from a chronic disability resulting from an
undiagnosed illness or combination of undiagnosed illnesses
that became manifest either during active duty in the
Southwest Asia theater of operations during the Persian Gulf
War or to a degree of 10 percent or more within a presumptive
period. Until recently, this presumptive period was 2 years
from the date the veteran last performed active service in
the Southwest Asia theater. 38 C.F.R. § 3.317(a)(i) (1997).
The presumptive period has now been extended by amendment
effective March 6, 1998 to December 31, 2001. See 63 Fed.
Reg. 44, 11122-23 (1998). Because the above-noted claims
fall within the purview of 38 C.F.R. § 3.317, additional RO
development is required prior to further appellate review.
Under the provisions of VBA Circular 20-92-29 (Revised July
2, 1997), the RO is required in claims alleging disability
from exposure to environmental agents while in the Persian
Gulf to “undertake all required development action,
including requesting a VA general medical examination.”
Other specialist examinations are to be ordered as
appropriate.
Here, the claims file reflects that a general medical
examination was conducted in May 1995. There is some
ambiguity regarding whether a prior Gulf War examination was
conducted in October 1994 at the VA medical center (VAMC) in
Fayetteville, North Carolina. While the RO appears to have
requested a copy of the examination report, no examination
report seems to have been included in the Fayetteville VAMC’s
response. The RO should clarify with the VAMC in
Fayetteville whether or not a Gulf War examination report
dated in October 1994 is on file.
Concerning the May 1995 Gulf War examination report that is
on file, the Board notes that the examiner lacked access to
any of the veteran’s medical records, whether service medical
records or post-service medical records. It is essential in
rating examinations that the disability or disabilities be
viewed in relation to their history. 38 C.F.R. § 4.1 (1997).
Examinations that fail to contain sufficient detail for
rating purposes must be returned as inadequate. 38 C.F.R.
§ 4.2 (1997).
In this respect, the RO should consult VBA All-Stations
Letter 98-17 (2/26/98) which contains mandatory guidelines
for disability examinations of Gulf War veterans outlined in
a memorandum dated February 6, 1998. The RO is advised to
obtain a copy of this letter and the accompanying memorandum,
and to provide the examiner with a copy of the guidelines
prior to scheduling the examination. The RO is advised to
make certain that the examination conforms precisely to the
guidelines set forth in the February 6 memorandum prior to
adjudicating the issues.
Accordingly, this case is REMANDED for the following actions:
1. With any needed assistance from the
veteran, including obtaining signed
releases, the RO should request up-to-
date copies of the records of any
evaluation or treatment, VA or private,
the veteran has received for headaches,
fatigue or liver, skin, gastrointestinal,
joint, or muscle symptoms. This should
include any up to date treatment records
from the Durham, North Carolina VAMC or
the Fayetteville, North Carolina VAMC.
All records so received should be
associated with the claims folder.
2 The veteran should again be asked to
submit nonmedical indications of the
onset of the claimed disabilities
postservice that can be independently
observed or verified. Such evidence
includes but is not limited to events as
time lost from work, evidence that a
veteran has sought medical treatment for
his or her symptoms, and evidence
affirming changes in the veteran’s
appearance, physical abilities and mental
or emotional attitude. In addition, the
veteran should submit verification of the
two vehicular accidents he claimed were
due to his fatigue.
3. The RO should also contact the
Fayetteville, North Carolina VAMC and
request a copy of an October 1994 Persian
Gulf War examination. It should be asked
to indicate whether it has such an
examination report on file.
4. Following completion of the above
development, the veteran should be
afforded a VA general medical examination
conforming to the criteria for conducting
Persian Gulf War examinations contained
in the February 6, 1998 memorandum
described above. The claims folder, a
copy of this REMAND and a copy of the
February 6, 1998 memorandum containing
the Guidelines for Persian Gulf War
disability examinations must be made
available to and be reviewed by the
examiner prior to the examination. The
purpose of this examination is to
identify all signs of symptomatology that
the veteran claims to experience on a
chronic basis as a result of his Persian
Gulf War service, to include liver
symptoms, skin symptoms, chronic fatigue,
gastrointestinal symptoms, joint
symptoms, headaches and muscle pain. The
purpose of the examination is also to
determine if the veteran suffers from the
diagnosed disability of chronic fatigue
syndrome. A complete history, which
includes the time of initial onset and
the frequency and duration of
manifestation of each claimed disability
should be elicited from the veteran. All
specialized testing should be completed
as deemed necessary by the examiner. The
examiner’s report should fully set forth
all current complaints, pertinent
clinical findings, and should expressly
state an opinion as to whether each
identifying symptom or condition is
attributable to a known clinical
diagnosis. For those symptoms and
conditions that are not attributable to a
known diagnosis, the findings should
reflect all objective indications of
chronic disability, as defined under
38 C.F.R. § 3.317(a)(2). With regard to
the veteran’s complaints of fatigue, the
examiner should note whether the veteran
meets the criteria for the diagnosed
disability of “chronic fatigue
syndrome” as set forth in the
regulations cited above. Finally, the
examiner should express his or her
opinion as to when such a symptom or
condition initially manifested itself and
whether it is to be regarded as
“chronic” (i.e. as having existed for
six months or more or as having resulted
in intermittent episodes of improvement
and worsening over a six month period.)
If specialist examinations are indicated,
they should be conducted. All opinions
expressed should be supported by
reference to pertinent evidence.
It is imperative that the examiner
follows the guidelines for conducting
Gulf War examinations set forth in the
February 6, 1998 memorandum.
Examinations that fail to conform to
these guidelines must be returned as
inadequate.
5. Upon completion of the development of
the record requested by the Board and any
other development deemed appropriate by
the RO, the RO should again consider the
veteran’s claims pertaining to
undiagnosed illnesses. Consideration
should be also be given to the issue of
service connection for “chronic fatigue
syndrome.” If any action taken remains
adverse to the veteran, he should be
furnished a supplemental statement of the
case (SSOC) concerning all evidence added
to the record since the last supplemental
statement of the case. The veteran should
be given an opportunity to respond. The
case should then be returned to the Board
for further appellate consideration, if
otherwise in order.
No action is required of the appellant until he is notified
by the RO. The purpose of this REMAND is to obtain
clarifying information and to provide the veteran with due
process.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
Iris S. Sherman
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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